Wednesday, July 8, 2009

Napolitano: No-Match Rule to be Rescinded

By Charles M. Miller

Homeland Security Secretary Jane Napolitano announced on July 8, 2009, that it was the agency’s intention to withdraw the Social Security No-Match Regulation, which has never been implemented and has been blocked by court order, in favor of the E-Verify system. .

The AFL-CIO, ACLU, National Immigration Law Center, US Chamber of Commerce, and other plaintiffs, were successful in obtaining a preliminary injunction in October 2007 stopping DHS from implementing this regulation. (AFL-CIO v Chertoff, ND Cal, No 3:07-cv-04472-CRB). In November 2008, DHS had filed a motion asking Judge Charles Breyer of the Northern District of California to lift the preliminary injunction on the federal agency's much beleaguered no-match regulation after publication of the agency’s No -Match supplemental final rule had been published in the Federal Register. Found online at

District Court Judge Breyer delayed the hearing on the merits of the litigation until the Obama administration had the opportunity to develop its own position, as reflected in the Napolitano press release. Judge Breyer had indicated that SSA had been prepared to send 140,000 letters concerning 8 million employees for Tax Year (TY) 2007. However, SSA No-Match letters for recent tax years have been in a holding pattern because of the litigation, with no current announcement as to the plans for their resumption.

Employers are reminded that the no-match letters represent only one form of constructive knowledge; ICE Worksite Enforcement cases maybe based on other forms of constructive knowledge. As a practical matter, an employer may obtain constructive knowledge that unauthorized aliens may be employed by a variety of other circumstances, including: (1) where the employer fails to complete or improperly completes the Form 1-9; (2) from information obtained from a labor certification application or visa petition; (3) rejection of an alien worker as an applicant due to employment authorization and/or identity document deficiencies, who later appears as an employee of an independent contractor; (4) local law enforcement advice after criminal and civil processes involving off-worksite activities of such a worker, and (5) adverse publicity following a contractor's worksite enforcement problems at another company.

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